Regina v. K

An accused charged with indecent assault upon a girl under 16 is entitled to an acquittal if he may honestly have believed that she was 16 or over, provided that she consented in fact and he genuinely believed that she consented. The belief about age need not rest on reasonable grounds, although its unreasonableness may show that it was not genuine.

The presumption that mens rea forms part of a statutory offence applies unless Parliament excludes it expressly or by necessary implication. For an implication to displace that presumption, it must be compellingly clear. The language and legislative history of Sexual Offences Act 1956, section 14, did not displace it.

K was indicted for indecent assault upon a 14-year-old girl, contrary to section 14(1) of the Sexual Offences Act 1956. He intended to contend that she consented, told him that she was 16 and gave him no reason to disbelieve her.

The Crown Court ruled that the prosecution had to disprove a genuine belief that the girl was 16 or over. The Court of Appeal (Criminal Division), on a prosecution appeal under section 35 of the Criminal Procedure and Investigations Act 1996, reversed that ruling.

The certified questions were whether an honest belief that the complainant was at least 16 could entitle the accused to acquittal and, if so, whether that belief had to be reasonable.

1. Appeal allowed unanimously. Lord Bingham delivered the leading speech. Lord Nicholls, Lord Steyn, Lord Hobhouse and Lord Millett agreed that the appeal should be allowed. The Crown Court's ruling was restored. The first certified question was answered affirmatively and the second negatively.

2. Per Lord Bingham, the common law presumes that mens rea is an unexpressed ingredient of every statutory offence unless Parliament excludes it expressly or by necessary implication. Section 14 of the Sexual Offences Act 1956 contained no express exclusion. Its language and legislative history supplied no necessary implication excluding an honest belief about the complainant's age.

3. Per Lord Steyn, the presumption supplements the statutory text and does not depend upon textual ambiguity. A necessary implication must be compellingly clear. Such an implication could arise where adding mens rea would produce internal inconsistency, but section 14 contained no such inconsistency. The special rule formerly derived from R v Prince for age-based sexual offences could no longer prevail.

4. Per Lord Bingham and Lord Hobhouse, where the complainant consented in fact, the prosecution had to prove that the accused did not genuinely believe both that she consented and that she was at least 16. If she did not consent and the accused did not genuinely believe that she did, his belief about her age was irrelevant because age affected only her legal capacity to consent.

5. Per Lord Bingham, an honest belief about age need not be reasonable. Its reasonableness remained evidentially important: an increasingly unreasonable belief was increasingly unlikely to be accepted as genuine.

6. Per Lord Bingham and Lord Steyn, the same presumption could not be applied to sections 5 and 6 of the 1956 Act. The express young man's defence in section 6(3), its omission from section 5 and the linked structure of those provisions necessarily excluded the general presumption.

7. Lord Millett agreed in the result but expressed misgivings about the resulting statutory incoherence, particularly because section 14(3) required a mistaken belief in marriage to be both honest and reasonable. He nevertheless concluded that the provision's piecemeal history and Parliament's failure to remove acknowledged anomalies made injustice too high a price for internal consistency.

1. House of Lords: Allowed K's appeal unanimously, restored the Crown Court's ruling and answered the first certified question affirmatively and the second negatively: [2001] UKHL 41.

2. Court of Appeal (Criminal Division): Allowed the prosecution's appeal and held that the prosecution did not have to disprove an honest belief that the complainant was 16 or over. It refused leave to appeal but certified questions of general public importance.

3. Chichester Crown Court: Judge Thorpe ruled before trial that the prosecution had to prove the absence of a genuine belief that the complainant was 16 or over.